Supreme Court: States can exclude transgender athletes from women's sports teams

The U.S. Supreme Court has ruled that states can exclude transgender athletes from women’s and girls’ sports teams. The opinion found that Title IX and the Equal Protection Clause permit states to maintain women’s and girls’ sports for biological females and that they may determine eligibility for women’s and girls’ sports based on biological sex. 

The case involved two issues: 

1. whether laws enacted by Idaho and West Virginia violate federal civil rights laws; and 
2. whether the West Virginia law violates the U.S. Constitution with regard to the athlete involved in the lawsuit. 

The Court decided unanimously that the laws did not violate federal civil rights laws, but were divided 6-3 with respect to whether there was a violation of the Constitution. 

The lawsuit involved a challenge to two laws that limit participation on women’s and girls’ teams. Idaho enacted a law that bars transgender women and girls from participating on any women’s and girls’ sports teams in public schools, from elementary school through college. The West Virginia law prohibits transgender women and girls from participating on women’s and girls’ sports teams in public secondary schools and colleges.

There were two plaintiffs in two separate lawsuits in the combined case heard by the Court during its term that ended June 30. One plaintiff wanted to try out for the women’s track and cross-country teams at Boise State University in Idaho. She did not make the NCAA teams at BSU but competed in women’s soccer at the club level. The other challenger was a 15-year-old high school student who has publicly identified as female since the third grade. She takes medicine to stave off the onset of male puberty and receives hormone therapy with estrogen. Her mother filed a lawsuit in federal court in West Virginia when she learned that her state’s law would bar her child from participating on the girls’ middle school sports teams.

The U.S. Court of Appeals held that the Idaho law violates the 14th Amendment’s guarantee of equal treatment and prohibited Idaho from enforcing the ban. A federal appeals court in Richmond also barred West Virginia from enforcing its law, holding that West Virginia’s law violated Title IX, a federal civil rights law that prohibits sex discrimination in educational programs and activities that receive federal funding, because it discriminated against students on the basis of sex. The lawsuits were appealed to the U.S. Supreme Court, who agreed to hear both appeals and considered them together.

In ruling that states may exclude transgender athletes from girls' and women's sports teams, the Supreme Court stated that men and women have “inherent physical differences” that are “relevant to athletic performance” such as “height, weight, strength, speed, endurance, and jumping ability.” Therefore, “forcing female athletes to compete against males can create significant safety risks” in contact sports. The opinion also stated that, “in virtually all competitive sports, forcing female athletes to compete against males can undermine competitive fairness.” As a result, “schools therefore typically maintain separate women’s and men’s sports teams.”

The Court then went on to note that Title IX bars discrimination on the basis of sex, and that the regulations that implement the law permit schools to maintain separate teams for "members of each sex". According to the opinion, when the law and the regulations refer to “sex,” they mean “biological sex,” because that was the ordinary meaning of the word when they were enacted in the 1970s. 

The Court also concluded that sports teams for biological males and biological females are reasonable because of the differences between men and women and the effects of those differences. The opinion observed that that 27 States, the NCAA, the U.S. Olympic and Paralympic Committee, and the International Olympic Committee “have all drawn the same line." 

The Court further found that states have an interest in ensuring safety and competitive fairness, which they can promote by limiting women’s and girls’ sports to biological females. This is true even when the effect of the classification is to exclude transgender athletes who have taken puberty blockers or hormones. The court noted that “States and leading athletic organizations ... have concluded that biological males still retain a physical advantage after taking puberty blockers and hormones.”

The opinion concluded by noting that "sports ... are highly competitive and generally zero sum. At almost every turn, someone wins and someone loses. Every athlete who makes a team takes a roster spot from another athlete. Every player who earns playing time reduces the playing time of a teammate.” Female athletes “care deeply about all of those things.”